James Wilson v. Freeman Baker

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-119113

Employee: James M. Wilson (Deceased)

Dependents: Nora Alice Escobedo and Robin Kay Vidiro

Employer: Freeman Baker

Insurer: Ward North America, Inc.

Date of Accident: June 2, 2001

Place and County of Accident: St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the associate administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the associate administrative law judge dated September 13, 2004, and awards no compensation in the above-captioned case.

The award and decision of Associate Administrative Law Judge L. Timothy Wilson, issued September 13, 2004, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of July 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

1. Are any benefits awarded herein? no
2. Was the injury or occupational disease compensable under Chapter 287? no
3. Was there an accident or incident of occupational disease under the Law? no
4. Date of accident or onset of occupational disease: alleged June 2, 2001
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? yes
7. Did employer receive proper notice? yes
8. Did accident or occupational disease arise out of and in the course of the employment? no
9. Was claim for compensation filed within time required by Law? yes
10. Was employer insured by above insurer? yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Claimants allege that employee suffered a heart attack as a delayed result of a motor vehicle accident that he was involved in while performing his truck-driving duties. 12. Did accident or occupational disease cause death? no Date of death? August 3, 2001 13. Part(s) of body injured by accident or occupational disease: fatal 14. Nature and extent of any permanent disability: 15. Compensation paid to-date for temporary disability: 16. Value necessary medical aid paid to date by employer/insurer? 17. Value necessary medical aid not furnished by employer/insurer? 18. Employee's average weekly wages: $\ 291.14 19. Weekly compensation rate: $\ 194.10 20. Method wages computation: stipulation

1. Amount of compensation payable:

The claim for compensation is denied.

1. Second Injury Fund liability: No

TOTAL: $\quad \ .00

1. Future requirements awarded: none

Dependents: Alleged Nora Alice Escobedo and Robin Kay Vidiro

Employer: Freeman Baker

Additional Party N/A

Insurer: Ward North America, Inc.

Checked by: LTW/mp

The above-referenced workers' compensation claim was heard before the undersigned Associate Administrative Law Judge on May 10, 2004. The record was left open for the submission of additional evidence; and the parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about August 9, 2004.

The claimants, Robin Vidiro and Nora Escobedo, appeared personally and through their attorney, Randy Alberhasky, Esq. The claimant, Robin Vidiro, seeks payment of funeral expenses. The claimant, Nora Escobedo, seeks payment of

temporary total disability compensation, funeral expenses, and death benefit compensation. The employer and insurer appeared through their attorney, Clifford K. Stubbs, Esq.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about June 2, 2001, Freeman Baker was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by Ward North America, Inc.

(2) On the alleged injury date of June 2, 2001, James A. Wilson was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and alleged accident of June 2, 2001, occurred in St. Louis County, Missouri. The parties, however, agree to venue lying in West Plains, Missouri. Venue is proper.

(4) The employer received notice of the employee's claim of injury as required by Section, 287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6) At the time of the alleged accident, the employee's average weekly wage was $\ 291.14, which is sufficient to allow a compensation rate of $\ 194.10 for both temporary and permanent disability compensation.

The sole issues to be resolved by hearing include:

(1) Whether the employee sustained an accident on June 2, 2001; and, if so, whether the accident arose out of and in the course of his employment with Freeman Baker?

(2) Whether the alleged accident of June 2, 2001, causedthe employee to suffer injuries and disabilities, including subsequent death, for which benefits are now being claimed?

(3) Whether the employer and insurer are obligated to pay for funeral expenses in the amount of $\ 1,206.65 ?

(4) Whether the employee had any dependents under Chapter 287, RSMo on or about June 2, 2001, and at the time of his death? (This issue includes consideration of whether the claimant, Nora Escobedo, is a dependent of the deceased employee under Chapter 287, RSMo and is entitled to benefits under Chapter 287, RSMo.)

(5) Whether the claimant Nora Escobedo is entitled to temporary disability compensation? (The claimant seeks nine weeks of temporary total disability compensation, payable for the period of June 3, 2001, to August 3, 2001.)

(6) Whether the claimant Nora Escobedo is entitled to death benefit compensation?

The claimants, Nora Escobedo and Robin Vidiro, testified at the hearing in support of their claim. Also, the claimants presented at the hearing of this case the testimony of Ella Yardley. In addition, the claimants offered for admission the following exhibits:

Exhibit A . Medical Records from Shannon County Medical Clinic

Exhibit B Physical Examination Certificate

Exhibit C Medical Records from St. Francis Medical Center

Exhibit D . Medical Records from Shannon County Medical Clinic

Exhibit E Medical Records from Ozark Medical Center

Exhibit F Medical Records from St. John's Regional Health Center

Exhibit G Medical Records from St. Francis Medical Center

Exhibit H Medical Records from St. John's Regional Health Center

Exhibit I Deposition of Dr. Diana Koenig

Exhibit J Deposition of Mary Mart

Exhibit K

Personnel File of James Wilson from National Transportation (maintained by Joe Morrison)

Exhibit L Assignment of Proceeds of Insurance

Exhibit M Life Insurance Policy for James Wilson (issued by New York Life)

Exhibit N Certificate of Death of James Wilson

Exhibit O 1999 and 2000 Personal Property Tax Receipts for Wilson, James \& Nora

Exhibit P Marriage License and Dissolution of Marriage Decree B/T Nora Alice Yardley \& Doyle Rowland; Marriage License and Dissolution of Marriage Decree B/T Nora Alice Escobedo and Nickey Pruitt Hedges; Marriage License and Dissolution of Marriage Decree B/T Nora Alice Chavez \& John Escobedo.

Exhibit Q Duncan Funeral Home Invoice

Exhibit R Copy of Valentine Card

Exhibit S Copy of Envelope

Exhibit T Letter Dated October 1, 2003

The exhibits were received and admitted into evidence.

The employer and insurer did not present any witnesses at the hearing of this case. The employer and insurer, however, offered for admission the following exhibits:

Exhibit 1 Property Tax \& Social Security Records

Exhibit 2 Medical Report of Michael W. Farrar, M.D.

Exhibit 3 Deposition of Michael W. Farrar, M.D. (with attachments)

Exhibits 1 and 2 were received and admitted into evidence at the hearing. Exhibit 3 was received and admitted into evidence subsequent to the hearing. 11

In addition, the parties identified several documents filed with the Division of Workers' Compensation which were made part of a single exhibit identified as the Legal File. The undersigned took official notice of the documents contained in the Legal File, which include: Notice of Hearing; Stipulation of Wage Rate (submitted June 14, 2004); Answer of Employer and Insurer to Amended Claim for Compensation; Amended Claim for Compensation; Answer of Employer \& Insurer to Claim for Compensation; and Claim for Compensation.

In this case two claimants seek death benefits compensation pursuant to a claim that the employee, James Wilson, sustained a motor vehicle accident on June 2, 2001, which arose out of and in the course of his employment with Freeman Baker. Notably, this claim alleges that this motor vehicle was a substantial factor in the cause of Mr. Wilson's heart attack, which occurred approximately 36 hours later on June 3, 2001, while being off duty and situated in a motel room; and this heart attack caused Mr. Wilson's death, which occurred nearly 3 months later.

Also, in addressing the issues presented in the case, consideration of the issues include whether the claimant Nora Escobedo is a dependent of the deceased employee, James Wilson. In asserting this claim, Ms. Escobedo acknowledges that she does not meet the definition of dependent as defined in Section 287.240.4, RSMo, but asserts she is legally entitled to be recognized as a dependent insofar she and the deceased employee enjoyed a relationship in the nature of a common-law marriage.

I.

Claim of Accident / Injury

James M. Wilson was an employee of Freeman Baker of Birch Tree, Missouri. Mr. Wilson was involved in an accident on June 2, 2001, at approximately 1:30 p.m. on I-70 East at Cypress in St. Louis in a construction zone. The tractor-trailer Mr. Wilson was driving struck an automobile in the rear-end, which was being driven by Janet Maddez-

Kreutz. A passenger in the automobile, Mary Mart, testified in her deposition that Mr. Wilson checked on her and the children in the back seat and attempted to joke around with them in order to make light of the situation. Additionally, Ms. Mart provided conflicting testimony relative to Mr. Wilson's physical appearance, offering both that he "seemed to be O.K." and "seemed to be alright" and then that he was "really upset."

After the accident, Mr. Wilson climbed in and out of his trailer to give information to the police officer and then delivered his load and drove as usual. According to the driver's log, Mr. Wilson dealt with the accident from approximately 1:30 p.m. until 3:00 p.m.; and then he drove for thirty minutes to deliver his load. Then from 3:30 p.m. until 5:00 p.m., he was off duty; and from 5:00 p.m. to 7:00 p.m., he drove back to Jackson, Missouri. A hand-written note in the Safety file indicates that he drove to Jackson where he stayed at a Drury Suites by Exit 105. Mr. Wilson stayed there for the remainder of